Office of the Attorney General
State of Texas

Re: Duties of a district clerk with regard to notices of
dismissal filed in civil action and related questions

Dear Mr. Driscoll:

You inquire about those duties which the district clerk of
Harris County must discharge in civil actions when the clerk
receives: (1) "notices of dismissal," (2) "a request for
withdrawal by an attorney from a civil action scheduled for
dismissal," and (3) "a combined motion and order for non-suit
filed in a civil action which was not signed by the Judge."
Before proceeding to answer your questions, some preliminary
matters need to be addressed.

The district court clerk's duties are prescribed by statute.
In particular, section 51.303 of the Texas Government Code,
governing the "duties and powers" of the clerk of a district
court, sets forth the following:

(a) The clerk of a district court, in record books kept for
that purpose, shall:

(1) record the acts and proceedings of the court;

(2) enter all judgments of the court under the direction of
the judge; and

(3) record all executions issued and the returns on the
executions.

(b) The district clerk shall keep in well-bound books an
index of the parties to all suits filed in the court. The index
must list the parties alphabetically using their full names and
must be cross-referenced to the other parties to the suit. In
addition, a reference must be made opposite each name to the page
of the minute book on which is entered the judgment in the case.

(c) On the last day of each term of the court, the district
clerk shall make a written statement of fines and jury fees
received. The statement must include the name of the party from
whom a fine or jury fee was received, the name of each juror who
served during the term, the number of days served, and the amount
due the juror for the services. The statement shall be recorded
in the minutes of the court after it is approved and signed by
the presiding judge.

(d) The clerk of a district court may:

(1) take the depositions of witnesses; and

(2) perform other duties that are imposed on the clerk by
law. (Emphasis added).

The duty to file papers and docket motions rests with the
clerk, and it is the duty of that official to file all papers
tendered for filing, and to docket all motions filed.

See also Wooster v. McGee, 1 Tex. 17 (1846) (the district clerk
is responsible for filing all papers in a cause presented by the
parties). The courts have therefore distinguished the clerk's
ministerial duties from judicial determinations. See, e.g.,
Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex.1978) ("Judges
render judgment; clerks enter them on the minutes.").

Rules 25 and 26 of the Texas Rules of Civil Procedure impose
obligations upon the district clerk with respect to administering
file dockets. Rule 25 of the Rules of Civil Procedure provides:

Each clerk shall keep a file docket which shall show in
convenient form the number of the suit, the names of the
attorneys, the names of the parties to the suit, and the nature
thereof, and, in brief form, the officer's return on the process,
and all subsequent proceedings had in the case with the dates
thereof. (Emphasis added).

Rule 26 of the Rules of Civil Procedure provides:

Each clerk shall also keep a court docket in a well bound
book in which he shall enter the number of the case and the names
of the parties, the names of the attorneys, the nature of the
action, the pleas, the motions, and the rulings of the court as
made. (Emphasis added).

Notices of dismissal are governed primarily by Rules 162 and
163 of the Rules of Civil Procedure. Rule 162 provides:

The plaintiff may dismiss a case upon filing a notice of
dismissal, which shall be entered in the minutes. A copy of the
notice shall be served in accordance with Rule 21a on any party
who has answered or has been served with process. (Emphasis
added).

Rule 163 states:

When it will not prejudice another party, the plaintiff may
dismiss his suit as to one or more of several parties who were
served with process, or who have answered, but no such dismissal
shall in any case, be allowed as to a principal obligor, except
in the cases provided for in Art. 2088 of the Revised Civil
Statutes of Texas.

In our opinion, the reasonable construction of Rules 162 and 163
in light of Rules 25 and 26 requires the clerk to perform the
ministerial acts of entering the notice of dismissal in the
minutes and filing it in the subject cause. See also Benge v.
Foster, 47 S.W.2d at 864 (clerk serves in ministerial capacity
for court).

As to correspondence received by a clerk concerning the
withdrawal of an attorney from a civil action, Rule 10 of the
Rules of Civil Procedure provides:

An attorney of record is one who has appeared in the case, as
evidenced by his name subscribed to the pleadings or to some
agreement of the parties filed in the case; and he shall be
considered to have continued as such attorney to the end of the
suit in the trial court, unless there is something appearing to
the contrary in the record. (Emphasis added).

Since the clerk is responsible for maintaining the "record" in a
civil action, see generally Tex.R.Civ.Proc. 25 and 26; Govt.Code
s 51.303, correspondence addressed to the clerk pertaining
thereto, such as a request for withdrawal by an attorney, should
be entered in the minutes and in the file by the clerk of the
district court. See also Curtis v. Carey, 393 S.W.2d 185, 188
(Tex.Civ.App.--Corpus Christi 1965, no writ) (having once
appeared as attorney of record for a party, an attorney, as an
officer of the court, will continue to be attorney of record for
that party until the trial court gives him permission to
withdraw); State Bar Rules, V.T.C.S. Title 14 App. art. 10, s 9,
Code of Prof.Resp., DR2-110(A)(1).

Turning to non-suits, the rule governing a plaintiff's motion
for non-suit provides:

Upon the trial of any case, at any time before plaintiff has
introduced all of his evidence other than rebuttal evidence, the
plaintiff may take a non-suit, but he shall not thereby
prejudice the right of an adverse party to be heard on his claim
for affirmative relief. In the event a motion for sanctions is
pending, or the party taking the non-suit has been ordered to pay
either attorney fees or other costs, or both, as sanctions for
failing to comply with court orders and has failed to pay such
fees or costs, or both, the non-suit shall have no effect upon
the liability for attorney fees, sanctions, or other costs.

Although Rule 164 does not specify any duties for the district
clerk concerning motions for non-suits, motion practice in civil
cases requires in part the following:

An application to the court for an order, whether in the form
of a motion, plea or other form of request, unless presented
during a hearing or trial, shall be made in writing, shall state
the grounds therefor, shall set forth the relief or order sought,
and shall be filed and noted on the docket. (Emphasis added).

Tex.R.Civ.Proc. 21. The word "shall" is generally construed to
be mandatory. Green v. County Attorney of Anderson County, 592
S.W.2d 69, 73 (Tex.Civ.App.--Tyler 1979, no writ); Attorney
General Opinion JM-561 (1986). Accordingly, a district clerk
must file in the record and note in the docket a motion for non-
suit and its accompanying proposed order. The clerk's
fulfillment of these duties in a timely manner is especially
significant in that the plaintiff's right to a non-suit exists
from the moment a motion for non-suit is made, unless the
defendant has, prior to that time, sought affirmative relief.
Greenberg v. Brookshire, 640 S.W.2d at 872.

SUMMARY

When the clerk of the district court receives a notice of
dismissal, a request for withdrawal by an attorney from a civil
action scheduled for dismissal, or a motion for a non-suit with
an accompanying proposed order, the duty of the clerk with
respect to each of these documents or instruments is to enter
them in the minutes and file them in the record of the subject
cause.